Grizzly bears are at a critical legal juncture as several populations have rebounded, but courts seem wary of the federal government’s attempts to turn management over to states.
The US Fish and Wildlife Service is reviewing the listing status under the Endangered Species Act of the Greater Yellowstone Ecosystem grizzly and Northern Continental Divide Ecosystem grizzly, whose populations have more than tripled in size since the bear was first listed in 1975. Under a settlement with Idaho, the agency also intends to review the entire “lower 48" listing—a blanket designation that protects the bears in the contiguous US.
“It strains credulity to say that it hasn’t recovered,” Jonathan Wood, Vice President of Law & Policy at the Property and Environment Research Center, said of the GYE and NCDE grizzlies, which are predominantly in Montana and Wyoming. “The population has continued to grow and expand, and bears are wandering further and further from their core habitat areas.”
But it’s hard to remove federal protections for animals like grizzly bears—partially because the public is attached to them, according to Andrew Mergen, a Harvard clinical law professor and former attorney at the Justice Department’s Environment & Natural Resources Division.
Delisting grizzlies would transfer their management to states, potentially weakening such federal safeguards as habitat preservation, prohibitions on harm and killing, and population monitoring.
Two attempts to delist the grizzly have failed in federal courts, and FWS will likely face additional judicial scrutiny if it tries again to turn management over to states.
“The bear is doing fine—that’s not the issue,” Mergen said. “People don’t trust the states.”
Courts Wary
Grizzlies have been delisted before—in 2007 and 2017—but federal courts overturned those decisions. Judges have told FWS to complete additional analysis but have never said that grizzlies aren’t recovered.
In 2009,
In 2018, District of Montana
On appeal, the Ninth Circuit agreed that FWS needed to take a closer look at how the delisting would affect the entire lower 48 population and ordered a comprehensive review. Grizzlies in the lower 48 consist of six informal population segments—four of which haven’t recovered as much as the GYE and NCDE grizzlies.
“Courts seem to be wary of putting a thumb on the scale,” Wood said, as evidenced by their repeated calls for more review.
The Ninth Circuit has consistently applied the principle of “institutionalized caution” toward endangered species, Wood said. The principle, which stems from the 1978 US Supreme Court case Tennessee Valley Authority v. Hill, has come to be interpreted as: When in doubt, err on the side of protecting a species.
It’s impossible to make a completely objective scientific determination when it comes to recovery of a species, said Daniel Rohlf, a professor at Lewis & Clark Law School. “It’s up to society to make that call. How protective—how risk adverse do we want to be?”
Concrete science on grizzly bear populations is hard to come by, as the bears roam over huge swaths of land, Deborah Sivas, a law professor at Stanford, said.
“It’s a big decision to put a species on the list, and it’s a big decision to take it off,” Sivas said. “Courts are grappling with a pretty momentous decision while trying to hold the service accountable and follow the letter of the law.”
Withstanding Judicial Review
FWS completed a five-year status review of the lower 48 population in 2021 and determined that the bear’s entire population still warranted a “threatened” listing. It then rejected Idaho’s 2022 petition to review the lower 48 listing.
But the agency agreed to review Montana’s petition to designate NCDE grizzly bears as a distinct population segment and review its listing status. It also agreed to a similar review of Wyoming’s petition over GYE grizzlies.
The states claim that the bears have recovered and are no longer threatened. The populations are geographically discrete and have met recovery criteria for eight consecutive years—showing stable or growing numbers, successful reproduction, and sufficient genetic diversity, they say.
“The agency will attempt to delist both,” Rohlf said of the GYE and NCDE grizzlies. “They will clearly be challenged.”
Despite FWS’s earlier rejection of Idaho’s petition to review the entire lower 48 listing, the agency agreed to review the full listing by Jan. 31, 2026 as part of a February settlement over Idaho grizzly bear killings.
An FWS spokesperson said that the agency’s analysis of Montana and Wyoming’s petitions will factor in that review of the entire listing.
FWS published a positive 90-day finding on Wyoming and Montana’s recent petitions to delist. But when Wyoming sued the Department of the Interior in May 2023 for failing to issue a 12-month finding by the deadline, the agency said that its job has been made more difficult by the federal courts.
There has been “ambiguous court guidance” that has provided very little understanding as to what is necessary to satisfy the ESA’s delisting requirements, Interior said in its response brief.
State Takeover
When deciding whether to delist a species, FWS considers whether the states that will manage the delisted animal have adequate plans to protect it.
Montana and Wyoming have both prepared grizzly bear management plans for potential delisting, and Idaho has joined them in a tri-state management plan—under which they’d adopt new management targets and mortality thresholds to keep populations above minimum recovery levels.
Ken McDonald, wildlife administrator of the Montana Department of Fish, Wildlife, & Parks, says the three states are committed to putting conservative limits on grizzly mortalities and promoting conservation strategies if the two populations get delisted.
Montana may eventually allow hunting, but it agreed to not propose that for five years after delisting—and even then there would be a public review process and a very limited number of tags, McDonald said.
“We can’t speak for what a judge might do but we feel really strongly that all the criteria have been met,” McDonald said, adding that day-to-day management of grizzly bears wouldn’t look much different if they were delisted.
Wary of the bears’ fate if delisted, FWS Director Martha Williams wrote a concerned letter to the Montana Fish, Wildlife & Parks director in February 2023 over Montana’s grizzly legislation.
Montana legalized shooting a grizzly if it threatens livestock and allowed wolf snaring and trapping and hound hunting for black bears in occupied grizzly bear range.
Those new laws were “inconsistent with commitments made by the state of Montana on how grizzly bears would be managed if they were to be delisted,” Williams said.
After the letter, Montana modified the livestock rule to require a rancher to first attempt nonlethal means of deterring a grizzly threatening livestock on public land before being issued a kill permit. It still allows a rancher to kill a grizzly that is attacking livestock without a permit or license.
A federal judge issued a preliminary injunction postponing the expanded wolf trapping and snaring rules, and the issue is now being considered by the Ninth Circuit.
But judicial and administrative hurdles that prevent states from managing their own animals can have detrimental effects.
Wood said that if the federal government tells states that a species can be delisted if it meets its target population—but then doesn’t follow through—public support for the ESA will erode, and future listing efforts will be thwarted by those who are wary of eternal government oversight.
“You set a target and hold yourself to it,” Wood said. “That’s how you get people to collaborate with you.”
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